Vendor v. Vendee. of frauds. Signature. authenticate the writing, and therefore it is in general immaterial in what part of the instrument the name is found. (a) Whether the writing of his name by the defendant in the body of the in- 4th sec. of stat. strument for a particular purpose (as stating a rent to be paid to himself) be a sufficient signing, appears to be doubtful. (b) A memorandum of agreement, written by the defendant, with his name printed, will be as binding as if his name were written. (c) So it is sufficient if the party knowing its contents sign it as a witness (d), and it seems sufficient if the initials of the name are set down. (e) The signature of the party may be supplied by reference to a letter or other writing recognising the agreement. (f). The statute also requires the agreement, &c. to be signed by the party to be charged therewith, or some other person thereunto, by him lawfully authorised. With regard to the party himself, it appears to be settled that a memorandum of agreement, naming both parties, but signed only by the party to be charged, will bind such party (g); but both the parties must be named in the instrument. (h) With regard to the person authorised by the parties to sign, it is settled that such person need not be authorised by writing (i); but such agent must be a third person and not one of the parties. (k) An auctioneer is the agent of the seller (), and of the purchaser also (m) within the (a) Ogilvie v. Foljambe, 3 Meriv. 62. Allen v. Bennet, 3 Taunt. 169. Knight v. Crockford, 1 Esp. N. P. C. 190. Saunderson v. Jackson. 2 Bos. and Pul. 259. (b) Stokes v. Moore, 1 Cox, 219. Cox's note, 1 P. Wms. 771. See also 9 Ves. 253. 18 Ves. Jun. 175. 3 Ves. & Beames, 187. Sugd. V. and P. 89, (6th edit.). (c) Saunderson v. Jackson, 2 Bos. and Pul. 239. Schneider v. Norris, Maul, and S. 286. Cases on the 17th sec. (d) Welford v. Beasley, 3 Atk. 503. 9 Ves. 291. See 1 Esp. N. P. C. 57. (e) Phillimore v. Barry, 1 Camp. N. P. C. 513. (f) See the cases collected, Sugd. Vend. and Purch, ch. 3, s. 2, (6th edit.). 2 Phil. Evid. 80, (6th edit.). (g) Hatton v. Gray, 2 Ch. Ca. 164. Cotton v. Lee, 2 Br. C.C. 564. Setou v. Slade. 7 Ves. Jun. 265, Wain v. Warlters, 5 East, 10. Saunderson v. Jackson, 3 Bos. and Pul. 238. Bowen v. Norris, 2 Taunt. $74. Allen v. Bennet, 3 Taunt. 176. Sugd. V. and P. 73, (6th edit.). (h) Ante, p. 396. (i) Coles v. Tregothick, 9 Ves. 250. Sugd. Vend, and Purch. 91, (6th edit.). (k) Wright v. Dannah, 2 Campb. N. (1) Blagden v. Bradbear, 12 Ves. 38. Vendor v. Declaration. statute. But if the action is brought against the purchaser by the auctioneer himself, a signing of the defendant's name by him will not be sufficient to satisfy the meaning of the statute (a); nor is a signing by the auctioneer's clerk sufficient, without the consent of the principal. (b) The declaration must state the contract according to the fact, and allege performance by the plaintiff of his part of the contract, or an excuse for the non performance. In one case it was held necessary for the plaintiff, the vendor of an estate, to set forth his title specially in the declaration. (c) But in a later case, where in a similar action the plaintiff averred that he was seised in fee of the land, and that the defendant agreed to purchase it on having a good title, and that his title to the land was made good, perfect, and satisfactory to the defendant, and that the plaintiff had been always ready and willing, and offered to convey the lands to the defendant, but that the defendant did not pay the purchase money, it was held on demurrer that such allegations amounted to performance of the agreement on the part of the plaintiff, so as to entitle him to recover. (d) Although a vendor cannot bring an action for the purchase money, without having executed the conveyance, or offered to do so, unless the purchaser has discharged him from so doing, (e) yet where the defendant became the purchaser of a leasehold estate sold by public auction, and by the conditions of sale it was stipulated that the purchaser should immediately pay down a deposit in part of the purchase money, and sign an agreement for payment of the remainder within twenty-eight days from the day of sale, when possession should be given of the part in hand, and that the purchaser should have proper conveyances and assignments of the leases without requiring the lessor's title, on payment of the remainder of the purchase money; and the declaration stated in the first count, that the plaintiffs gave the defendant possession according to the conditions, and were also ready and willing to give him proper conveyances and assignments of the leases of (a) Farebrother v. Simmons, 5 B. and A. 333. (b) Coles v. Tregothick, 9 Ves. 234. Sugd. Vend. and P. 91, (6th edit.). (c) Phillips v. Fielding, 2 H. Bl. 123, and see Duke of St. Albans v. Shore, 1 H. Bl. 275, 280, and Luxtòu v. Robinson, Douglas, 620. (d) Martin v. Smith, 6 East, 555. (e) Jones v. Barklay, Dougl. 584. Phillips v. Fielding, 2 H. Bl. 123. Sugd. V. and P. 220, (6th edit.). the estate, on payment of the remainder of the purchase money; and in the second count, that the plaintiffs contracted with the defendant to sell, and the defendant to purchase an estate, and that on the plaintiffs having promised the defendant to convey, he promised to accept the conveyance, and to pay the remainder of the purchase money in a reasonable time, and that although the plaintiff were ready and willing, and offered to convey and assign to the defendant, and although a reasonable time had elapsed for accepting the conveyance, yet that the defendant would not accept it, or pay the remainder of the purchase money, it was held on motion in arrest of judgment, that the declaration was sufficient after verdict. (a) The plaintiff may aver that he tendered the draft, and that the defendant discharged him from executing it; or that he tendered the assignment, and that the defendant refused to accept it. (b) It has been usual to aver in the declaration by way of inducement, that the plaintiff was seised in fee, &c. at the time of the sale (c), but this appears to be unnecessary, for if the purchaser has not made an application for the title before the commencement of the action, and no time is fixed for completing it, it will be sufficient if the vendor show a complete title at the time of the trial. (d) Vendor v. Vendee. The plaintiff must be prepared to prove the averment of his Evidence. title as stated in the declaration (e); and if the purchaser has not made an application for the title before the commencement of the action, and no time is fixed upon for completing the contract, it will be sufficient if the deeds shew a good title subsisting in the plaintiff at the time of the trial. (ƒ) The plaintiff on producing the title deeds will not be compelled to prove their execution by calling the subscribing witnesses. (g) In a later case, indeed this doctrine was denied (h); but the former decision was not adverted to, and as that decision is understood to coincide (a) Ferry v. Williams, 1 B. Moore, 498. 8 Taunt. 62, S. C. (b) See 2 Phill. Evid. 98. Jones v. Barkley, Dougl. 684. 5 East, 202. (c) Martin v. Smith, 6 East, 555. 2 Wentw. 91. (d) Thompson v. Miles, 1 Esp. N. P. C. 184. (e) 2 Phill. Evid. 98. (f) Thompson v. Miles, 1 Esp. N. P. (h) Crosby v. Percy, 1 Campb. N.P. Vendor v. Vendee v. with the practice in these cases, it can scarcely be considered as overruled. (a) Under the general issue the defendant may show that the contract is absolutely void on account of fraud practised against him by the plaintiff (b), as where the plaintiff has fraudulently misrepresented the quality or value of the property, or wilfully misdescribed its locality, so as to make it appear more valuable. (c) Where a person is employed by the plaintiff at the sale, not for the purpose of preventing a sale at an undervalue, but to take advantage of the eagerness of bidders, to screw up the price, it seems that this will be deemed a fraud. (d) The defendant may also shew a defect of title in the vendor, and on that ground rescind the contract (e), as where the vendor had an interest in the premises for a shorter term than he contracted to sell (f), or where the premises are subject to an incumbrance, or annual payment, of which no notice has been given. (g) If the vendor refuses, or is unable to complete his contract, the purchaser may bring an action for the non performance, declaring specially upon the contract, or in case he has made a deposit, or paid any part of the purchase money, he may bring an action for money had and received to his use. In the former action, the plaintiff will be enabled to recover the deposit, and also interest, and any expenses to which he may have been put in investigating the title by way of special damage; in the latter, if he declare only for money had and received, he will recover the deposit or purchase money only, and not the expenses to which he has been put, or even interest as it seems (h); but in neither form of action can he recover any compensation for the fancied goodness of his bargain, where the vendor is without fraud, in (a) See Sugd. V. and P. 216, (6th (b) 2 Phill. Evid. 99, (6th edit.). (d) Smith v. Clarke, 12 Ves. Jan. 483. (e) 2 Phill. Evid. 99, (6th edit.). (ƒ) Farrer v. Nightingal, 2 Esp. N. P. C. 639. Hibbert v. Shee, 1 Camp. N. P. C. 113. (g) Turner v. Beaurain, MS. Sugd. V. and P. 252. Barnwell v. Harris, 1 Taunt. 430. (h) Camfield v. Gilbert, 4 Esp. N.P. C. 221. Walker v. Constable, 1 Bos. and Pul. 306. Sugd. Vend. and Purch. 213, (6th edit.). See 2 Stark. Ev. 791. capable of making a title. (a) To enable the plaintiff to maintain an action for money had and received, the contract must be disaffirmed, ab initio. If the purchaser has had an occupation of the premises under the contract, he adopts the contract, and cannot disaffirm it afterwards by quitting the premises, as the parties cannot be put into the same situation in which they before stood; therefore, an action for money had and received cannot be maintained, but the plaintiff must sue upon the special agreement. (b) In order to enable the purchaser to recover the deposit (c), or the purchase money paid to the vendor, the plaintiff must prove the title defective, and it will not be enough to prove that it has been deemed by conveyancers to be insufficient. (d) The vendor must be prepared to make out a good title on the day on which the purchase is to be completed. If he delivers an abstract, setting out a defective title, the purchaser may object to it; and when the abstract is delivered by the seller, he must be able to verify it by the title deeds in his possession. Unless a good title is made out at the day fixed, the plaintiff will be entitled to rescind the contract and recover the deposit. (e) When the property which the plaintiff had purchased, and on which he had paid the deposit, consisted of several parcels which were sold at a public auction in distinct lots, Lord Kenyon held, that as the vendor had given an abstract of the title only to a single lot, and refused to deliver an abstract of the rest, the purchaser might rescind the whole contract; his lordship considering the purchase of the several lots as having been made with a view to a joint concern, and that the contract, for the convenience and interest of the purchaser, must be understood to be one entire contract for the whole. (f) Although it is a question upon which there has been some difference of opinion, yet it seems that a court of law will enter into (a) Flurean v. Thornhill, 2 W. BI. 1078. Bratt v. Ellis, MS. Sngd. Vend. and Purch. 213, (6th edit.). (b) Hunt v. Silk, 5 East, 449. (c) A deposit is considered as a payment in part of the purchase money. See Sugd. V. and P. 40, 6th edit. (d) Camfield v. Gilbert, 4 Esp. N. P. C. 221. (e) Cornish v. Rowley, MS. Selw. N. P. 170, 4th edit. Berry v. Young, (f) Chambers v. Griffith, 1 Esp.N.P. Vendee v. Vendor. |